[1992] FCA 385; (1993) 28 ALD 289

Administrative Law - fisheries - Plan of Management - statutory instrument - effect in law - nature of obligations imposed on Minister and Secretary in relation to Plan of Management - issue of fisheries notices - whether fisheries notices inconsistent with obligations - whether fisheries notices invalid - whether levy payments made under invalid compulsion.

Fish and Fisheries - Plan of Management - legal effect - instrument under Act - nature of obligation on Minister and Secretary in relation to Plan - limitation of fishing capacity of boats under Plan - allocation of units of fishing capacity - fisheries notices - imposition of gear restrictions - whether further limitation of fishing capacity of boats - whether inconsistent with provisions of Plan of Management - whether implied repeal of Plan of Management - payment of levies - by reference to units of fishing capacity - whether payments made under invalid compulsion.

Fishing Legislation Amendment Act 1985

Fishing Legislation Amendment Act 1987

Continental Shelf (Living Natural Resources) Act 1984

Torres Strait Fisheries Act 1984

Acts Interpretation Act 1901

Fisheries Legislation (Consequential Provisions) Act 1991

Fisheries Management Act 1991

Fisheries Administration Act 1991

Fisheries Levy Amendment Act 1985

Fisheries Levy Act 1984

Administrative Appeals Tribunal Act 1975

Pearce - Delegated Legislation in Australia and New Zealand (1977)

Azevedo v. Secretary, Department of Primary Industry and Energy (1992) 106 ALR 603

Secretary, Department of Primary Industries and Energy v. Collins [1992] FCA 61; (1992) 106 ALR 351

Austral Fisheries Pty Ltd v. The Minister for Primary Industries and Energy (unrep Fed Ct 28/7/1992)

Re Brown and Secretary, Department of Fisheries and Energy (1989) 18 ALD 543

Re Wisby and Secretary to the Department of Primary Industries and Energy (unrep 13 April 1989)

Counsel for the Applicant: Mr C. Zelestis QC and Mr G. Macnish

Counsel for the Respondent: Mr R. Tracey QC and Mr R. Cullimore

Solicitors for the Respondent: Australian Government Solicitor

2. The applicants are to pay the costs of the application unless within seven (7) days they apply for some different order in relation to the costs of the application.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

In February 1988 the Minister for Primary Industries and Energy issued a notice under the Fisheries Act 1952 restricting the number and size of nets that could be used by boats trawling for prawns in waters off the north coasts of Western Australia and the Northern Territory. The owners of three prawn trawlers have instituted these proceedings challenging the validity of that notice and two later notices which were to similar effect. The notices, they say, impose restrictions on the capacity of their boats to catch prawns in a way that is inconsistent with a statutory Plan of Management previously adopted by the Minister. If the notices are valid, then they say that certain levies paid by them on the basis of the fishing capacity of the boats as defined in the Plan have been paid under invalid compulsion and should be repaid.

2. John Albert Boschetti has been a fisherman since 1958 when he began working as a deckhand on crayfishing boats operating off the Western Australian coast. In 1961 he was awarded a Coxswain's Certificate and operated various vessels in the Western Australian rock lobster fishery until 1983. In June 1981, Latitude Fisheries Pty Ltd, a company of which he and his wife, Julia Ellen Boschetti are directors, purchased a 23 metre Success Class Prawn Trawler called "Latitude". In June 1984 the company and Mr and Mrs Boschetti purchased another Success Class Prawn Trawler called "Portland Road". A third vessel of the same class called "South Passage" was acquired by the company in June 1988. Mr Boschetti has commanded each of these vessels from time to time since they were purchased.

3. The vessels have operated in waters in and around the Gulf of Carpentaria. It is a matter of public record referred to in Azevedo v. Secretary Department of Primary Industry and Energy (1992) 106 ALR 603 at 689 that, in February 1977, a notice issued under s.8 of the Fisheries Act 1952 prohibiting fishing for prawns in those waters save by fishing boats with licences endorsed for that purpose under s.9(4) of the Act. At all relevant times the company and the Boschettis have held such licences in respect of their vessels.

4. On 13 February 1986, the Minister for Primary Industry, exercising his powers under s.7B of the Fisheries Act, determined a Plan of Management known as the Northern Prawn Fishery Management Plan ("the Plan") which came into operation on 1 March 1986. It applied to an area comprising two sub-areas defined in Schedule 2 to the Plan. Sub-area 1 runs west from Slade Point on the west of Cape York to Cape Ford further west and includes the Gulf of Carpentaria. Sub-area 2 runs west from Cape Ford to Cape Londonderry and includes the Joseph Bonaparte Gulf. The Boschettis and the company had previously operated their boats in what became sub-area 1.

5. The stated objectives of the Plan set out in para.7.1 are:

"(a) to conserve, and to reduce the fishing pressure on, the

stocks of prawns in the area of the fishery; and

(b) to promote the economic efficiency of the fishery."

The Plan made provision (which will be set out in more detail later in these reasons) for allocation of rights to fish for prawns in the fishery by reference to units of fishing capacity. It allowed for a maximum of 122,000 Class A units. Each boat permitted to operate in the fishery had a number of Class A units attributed to it by reference to under-deck volume and engine power. The Plan provided that by notice to be issued under the Act the use of a boat in the fishery was to be prohibited unless it had a requisite number of Class A units attached to it. Another class of units, designated Class B not exceeding 275 in number, was also created. It was a requirement of the Plan that a notice would issue under the Act prohibiting the use of a boat in sub-area 1 of the fishery unless a Class B unit was assigned to that boat. The use of a boat in sub-area 2 was to be the subject of a like prohibition excepting those boats to which a Class B unit was assigned and/or those to which a Class C unit was assigned from 1 March 1987.

6. Latitude Fisheries Pty Ltd and the Boschettis operated their boats in sub-area 1 and had Class A Units assigned to them as follows:

(i) "Latitude" 511 Units

(ii) "South Passage" 705 Units

(iii) "Portland Road" 547 Units

Prior to 15 February 1988, Latitude and Portland Road each used four otter trawl nets with headrope lengths of 16.47 metres. The headrope length of an otter trawl net is the length of the rope on the upper side of the mouth of the net. It is illustrated by a diagram of a boat pulling two nets which is annexed to and forms part of these reasons for judgment. The South Passage, which is about 6 metres longer than Latitude and Portland Road, has the same breadth and moulded depth amidships and is capable of pulling at least four otter trawl nets each with a head rope length of 16.47 metres.

7. On 24 February 1988, the Minister published Fisheries Notice 203 under the Fisheries Act which restricted the number and dimension of otter trawl nets which could be used in the fishery so that a boat with more than 375 Class A units could use no more than two nets. The maximum headrope length permitted where two nets were used was 25.65 metres. If only one net were to be used, the head rope length was not to exceed 51.3 metres. Fisheries Notice 203 was revoked and Fisheries Notice Number NPF9 substituted for it on 27 March 1991. It imposed net restrictions of identical effect. On 27 March 1992 the Notice NPF9 was revoked and a further Notice, NPF16, issued imposing the same restrictions on net numbers and size to like effect.

8. A naval architect, Leo Van Brakel, gave evidence on affidavit, which was not disputed, relating to the attributes of the vessels relevant to what he called their fishing capacity and the effect upon that capacity of the net restrictions. At one point in the affidavit he defined the term "fishing capacity" as "maximum capacity to catch prawns". At another point he said that "the ultimate expression of the fishing capacity of a prawn trawler is the number or size of nets it can efficiently pull at trawling speed". In context I take his concept of fishing capacity to be a measure of the maximum size of catch that can be handled by a vessel in any one trip to sea, weather conditions permitting. Factors relevant to the fishing capacity of a vessel so defined are:

1. Its size and dimensions.

2. The continuous brake power of its engine.

3. The efficiency of its propeller.

4. Electronic navigational and depth sounding equipment.

The maximum breadth of a vessel and its moulded depth amidships determine its stability while trawling and free running. The overall length of the vessel, its maximum breadth and moulded depth amidships determine its capacity to hold, freeze and store a catch and the length of time it can remain at sea without replenishing supplies and fuel. The continuous brake power of the vessel's engine and the efficiency of its propeller determine the number and size of the nets which it can pull when operating at trawling speed. The size of the prawn catch which can be taken by a trawl net is determined by its headrope length which determines the extent to which the mouth of leading edges of the net will open horizontally and vertically. There is a limiting size beyond which a net will not function efficiently. The size of the catch that may be taken by a vessel on a given trip is determined by the total area of seabed covered by all nets which it is pulling. Because of the constraints upon efficient operation by the limiting size referred to earlier, four nets each at maximum operable headrope length are more efficient than two nets each with its greater maximum operable headrope length. These in turn are more efficient than one net with its maximum operable headrope length.

9. Mr Van Brakel said that the number of Class A units assigned to a boat is a function of its volumetric fishing capacity. On the assumption that that term refers to the volume of the boat hull available for the storage of prawns, it is consistent with the proper construction of Schedule 1 of the Plan. Prior to the issue of the Fisheries Notice No. 203 the capacity of the three vessels to catch prawns was determined by their dimensions, the continuous brake power of their engines and the efficiency of their propellers. They were each capable of pulling in excess of both the number and size of nets now permitted. Using Mr Van Brakel's terminology as I have interpreted it, the fishing capacity of the three boats operated by the applicants is limited by the net number and size restrictions imposed by the successive fishing notices to which I have referred.

10. By a writ issued out of the High Court on 21 February 1992, Latitude Fisheries Pty Ltd and Mr and Mrs Boschetti claimed against the Commonwealth and the Minister for Primary Industry and Energy a declaration that each of the fishery notices 203 and 9 was an invalid exercise of power under the Fisheries Act 1952. In the alternative they claimed a declaration that the two notices had impliedly repealed parts of the Plan in which the Minister had determined the measure of the fishing capacity of the fishery by reference to Class A Units. An order was sought that moneys paid under the Fisheries Licence Levy Act in respect of Class A Units allocated under the Plan be repaid by the Commonwealth. The total amount claimed by the company was $245,494.20 paid in respect of the vessels Latitude and South Passage. The amount claimed by the company and the Boschettis together was $119,538 paid in respect of Portland Road.

11. On 18 February 1992 the action was remitted to the Federal Court by order of Brennan J. A defence was filed on 16 March 1992 and on 15 April an order was made that the trial be on affidavit evidence and directions were given for the filing of affidavits and outlines of submissions. The application came on for hearing on 28 July 1992 and judgment was reserved until today. The statement of claim was amended by consent at the trial to refer to the Plan as determined on 1 March 1986 and all Plans substituted for it since that date. It was also amended to pick up fisheries notice number NPF16, to claim declarations as to its invalidity and alternatively its effect as impliedly repealing part of the Plan relating to the determination and allocation of fishing capacity. Before turning to the contentions advanced in support of the claims made by the company and the Boschettis it is convenient to refer to the relevant provisions of the Act, the Plan, the notices and associated legislation.

12. The Northern Prawn Fisheries Management Plan in its original and amended forms and the various fisheries notices which are attacked in these proceedings were all determined and issued under the provisions of the Fisheries Act 1952. That Act has been repealed except as to Pt. IVA from 11 May 1992. The effect of the repeal will be considered below. It does not affect the operation of the current Northern Prawn Fisheries Management Plan. The provisions of the former Act with respect to the determination of the various Plans and their effect and the issue of the fisheries notices are relevant.

13. Section 5B of the Act specified objectives to which the Minister is required to have regard in the administration of the Act:

"5B. In the administration of this Act, the Minister

shall have regard to the objectives of -

(a) ensuring, through proper conservation and

management measures, that the living

resources of the Australian fishing zone

are not endangered by over-exploitation;

and

(b) achieving the optimum utilization of the

living resources of the Australian fishing zone,

but shall ensure, so far as practicable, that measures

adopted in pursuit of those objectives shall not be

inconsistent with the preservation, conservation and

protection of all species of whales."

Section 7 empowered the Governor-General to declare any marine or tidal waters to be proclaimed waters for the purposes of the Act. The power did not extend to coastal waters of or waters within the limits of a State or internal Territory. Determination of plans of management for fisheries in proclaimed waters was authorised by s.7B. That section and s.7C were introduced into the Act by the Fishing Legislation Amendment Act 1985. Their principal purpose as explained in the Second Reading Speech was "to provide clear and legally-based powers for the development and implementation of management plans in accordance with the stated objectives of the Fisheries Act 1952 of ensuring that the living resources of the Australian fishing zone are not endangered by overexploitation and that there is optimum utilisation of those resources" (H. of R. Deb. 17.4.85 p 1288) Section 7B provided:

"7B(1) The Minister may, by instrument in writing,

determine a plan of management for a fishery in

proclaimed waters.

(2) A plan of management for a fishery shall set

out -

(a) the objective of the plan of management;

and

(b) measures by which the objective is to be

attained.

(3) Without limiting the generality of sub-section

(2), the Minister may, in a plan of management for a

fishery-

(a) determine the manner in which the fishing

capacity of the fishery is to be measured;

and

(b) determine the fishing capacity, measured

in that manner, permitted for the fishery.

(4) Without limiting the generality of sub-section

(2), a plan of management for a fishery may make

provision for and in relation to-

(a) the granting of licences under sub-sections 9(2) and (3)

in relation to the fishery;

(b) the conditions to which licences granted under

sub-sections 9(2) and (3) in relation to the fishery are

to be subject; and

(c) the duration, transfer, renewal and

variation of licences granted under sub-sections

9(2) and (3) in relation to the fishery.

(5) Where, in a plan of management for a fishery,

the Minister determines the fishing capacity permitted

for the fishery, then, without limiting the generality

of sub-section (2), the plan of management may make

provision for and in relation to-

(a) the division of the fishing capacity

permitted for the fishery into units (in

this section referred to as "units of

fishing capacity");

(b) the allocation to persons of units of

fishing capacity in the fishery;

(c) the assignment of units of fishing

capacity to boats, and the holding, and

cessation of holding, of units of fishing

capacity in relation to boats;

(d) requiring units of fishing capacity to be

held in relation to boats;

(e) the determination of the number of units

of fishing capacity to be held in relation

to boats;

(f) the holding of units of fishing capacity

that are not assigned to a boat, including

the number of such units of fishing

capacity that may be held by a person and

the period during which such units of

fishing capacity may be held;

(g) the duration, variation, re-assignment,

transfer, surrender, replacement, renewal

of allocation, suspension and cancellation

of units of fishing capacity;

(h) the recording of the allocation,

assignment, holding, cessation of holding,

variation, re-assignment, transfer,

surrender, replacement, renewal of

allocation, suspension and cancellation of

units of fishing capacity and the manner

in which such recording is to be

evidenced, including the issue, recall and

replacement of certificates and other

documents evidencing such recording; and

(j) the reconsideration of decisions made

under the plan of management."

Sub-sections (6) and (7) related to the payment of fees in respect of allocation and transfer of units of fishing capacity and regulations prescribing such fees. Sub-sections (8) and (8A) which are of particular importance were as follows:

"(8) While a plan of management is in force for a

fishery, the Minister and the Secretary shall perform

their functions, and exercise their powers, under this

Act in relation to the fishery in accordance with the

plan of management, and not otherwise.

(8A) The Minister and the Secretary shall, in the

performance of their functions and the exercise of

their powers generally under this Act, have regard to

the effects, either direct or indirect, that the

performance of the functions and exercise of the

powers may have in relation to any plan or plans of

management.

Sub-section 7B(8A) was introduced into s.7B by the Fishing Legislation Amendment Act 1987 (No. 176 of 1987). It was one of a number of amendments to the Continental Shelf (Living Natural Resources) Act 1984, the Fisheries Act 1952 and the Torres Strait Fisheries Act 1984 which were described in the Second Reading Speech as "of an essentially administrative and procedural nature" (H of R Deb 18.9.87 p 329).

(9) In this section-

"decision" has the same meaning as in the

Administrative Appeals Tribunal Act 1975;

"fishery" means a class of activities by way of

fishing, being a class of such activities that is

identified in a plan of management as a fishery to

which the plan of management applies.

(10) Without limiting the matters by reference to

which a fishery may be identified in a plan of

management, those matters include all or any of the

following:

(a) a species of fish;

(b) a description of fish by reference to sex

or any other characteristic;

(c) an area of waters or of seabed;

(d) a method of fishing;

(e) a class of boats;

(f) a class of persons;

(g) a purpose of activities."

Section 7C made provision for the publication of notice of a determination of a plan of management in the Gazette and applied various sections of the Acts Interpretation Act 1901 to such determinations. The section was in the following terms:

"7C(1) The Minister shall cause to be published in the

Gazette, in respect of each determination, notice of -

(a) the fact that the determination has been

made; and

(b) the place or places where copies of the

determination can be obtained.

(2) A determination may make provision for or in

relation to a matter by applying, adopting or

incorporating, with or without modification-

(a) a provision of any Act or any regulation

made under an Act, of any notice published

under section 8 or any other determination

as in force at a particular time or as in

force from time to time; or

(b) any matter contained in any other

instrument or writing as in force or

existing at the time when the

determination takes effect.

(3) Sections 48 (other than paragraph (1)(a)), 48A,

48B, 49 and 50 of the Acts Interpretation Act 1901

apply to determinations as if, in those sections,

references to regulations were references to

determinations and references to a regulation were

references to a provision of a determination.

(4) Determinations are not statutory rules within

the meaning of the Statutory Rules Publication Act

(5) For the purposes of section 5 of the Evidence

Act 1905, a determination shall be deemed to be an

order made by a Minister.

(6) A determination shall be deemed to be an

enactment for the purposes of the Administrative

Appeals Tribunal Act 1975.

(7) In this section, "determination" means a

determination under sub-section 7B(1).

15. Fisheries notices could be issued pursuant to s.8 of the Act which, in the relevant parts, provided:

"8(1) The Minister may, by notice published in the

Gazette-

(a) prohibit the taking, processing or

carrying of fish, or fish included in a

class of fish specified in the notice;

.

.

.

(c) prohibit the taking of fish, or fish

included in a class of fish specified in

the notice, by a method, equipment or boat

of a kind specified in the notice;

.

.

.

(da) prohibit a person from having in the

person's possession or in the person's

charge in a boat equipment of a specified

kind for taking fish;

.

.

.

(2) A notice under subsection (1) may do all or any

of the following:

(a) contain prohibitions under 2 or more

paragraphs of that subsection;

.

.

.

(d) provide for exemptions from the

prohibition or prohibitions contained in

the notice.

.

.

.

(4A) A prohibition contained in a notice under sub-

section (1) comes into force on the day on which the

notice is published or on such later day as is

specified in the notice.

.

.

.

(5) For the purposes of section 5 of the Evidence Act

1905, a notice under this section shall be deemed to

be an order within the meaning of that section."

As with determinations of plans of management, various provisions of the Acts Interpretation Act were attracted to the issue of notices under s.8. This was provided for in s.8A.

Regulatory Framework - The Northern Prawn Fishery Management Plans

16. The Northern Prawn Fishery Management Plan, also known as Plan of Management No.3, was notified in Commonwealth Gazette on 21 February 1986. By para.5 it was expressed to apply to "all fishing in the managed fishery". Paragraph 6 defined "the managed fishery" as follows:

"The managed fishery to which this plan applies

comprises-

(a) the stock of prawns in the area of the

managed fishery; and

(b) activities by way of fishing undertaken in

the area of the managed fishery by any

method with the intention of taking

prawns."

The "area of the managed fishery" was defined in para.4.1 as the area of proclaimed waters comprising sub-area 1 and sub-area 2. "Sub-area" was said to mean an area described and identified by a number in Schedule 2. The objectives of the Plan and means for attaining them were set out in para.7 as follows:

"7.1 For the purposes of sub-section 7B(2) of the Act,

the objectives of this plan for the fishery are,

consistently with the objectives specified in s.5B of

the Act -

(a) to conserve, and to reduce the fishing

pressure on, the stocks of prawns in the

area of the fishery; and

(b) to promote the economic efficiency of the

fishery.

7.2 The measures for attaining the objectives

specified in paragraph 7.1 shall include-

(a) exercising the powers in Pt III of the Act

and implementing the provisions of this

Plan so as to-

(i) protect the life cycle of

prawns during the

juvenile phases; and

(ii) control the number of

boats authorised to

operate in the fishery

and the total fishing

capacity of those boats;

(b) determining the manner of measuring the

fishing capacity of the fishery;

(c) determining the fishing capacity, measured

in the manner referred to in sub-paragraph

(b), permitted for the fishery; and

(d) facilitating the withdrawal of units from

the fishery by the measures specified in

Part 8 or 9."

17. The Plan created units of fishing capacity which were defined in para.4.1 thus:

"Class A unit means a unit determined in accordance

with paragraph 3.1 of Schedule 1.

Class B unit means a unit registered and designated

with a serial number in accordance with paragraph

14.2.

Class C unit means a unit registered and designated

with a serial number in accordance with paragraph

18.2."

18. Schedule 1 established for any boat of given dimensions a formula for determining its fishing capacity by reference to a number of Class A Units which would have to be assigned to it before it could operate in the area of the managed fishery. Paragraph 3.1 of Schedule 1 provided:

"3.1 The applicable number of Class A units determined in

relation to a boat shall at any time be the sum of -

(a) the number of units of under-deck volume in relation to

that boat, determined in accordance with paragraph 1.1;

and

(b) the number of units of engine power in relation to that

boat, determined in accordance with paragraph 2.1."

Paragraph 3.2 provided for the number of Class A Units determined in relation to a boat to vary in accordance with modifications or alterations to the dimensions of its hull or of the engine power. The number of units of under-deck volume of a boat for the purpose of para.3.1 is calculated by a formula set out in para.1.1 which provides:

"1.1 Subject to paragraph 1.2 and 1.3, the number of

units of under-deck volume in respect of a boat

measured for purposes of ascertaining the applicable

number of Class A units of fishing capacity shall be

equal to the nearest whole number calculated in

accordance with the formula -

L x B x D x 0.6

2.83

Paragraph 1.2 defined "L" as the length of the boat, "B" as its maximum breadth and "D" as its moulded depth. That paragraph also provided for the manner of measurement of those dimensions and their expression in metres to two decimal places.

19. The number of units of engine power in relation to a boat was defined by para.2.1:

"2.1 The number of units of engine power in relation

to a boat to which paragraph 1.1 refers shall be the

maximum continuous kilowatts brake power specified by

the manufacturer in relation to the type of engine or

engines installed in the boat to provide the

propulsive power for the boat that the engine or

engines can safely produce at an ambient temperature

of 27 C."

As appeared from para.3.1 the number of Class A units in relation to a boat was defined as the sum of the number of units of its under-deck volume and the number of units of its engine power.

20. The substantive provisions of the plan provided for notices to issue under the Act prohibiting the use of a boat in the fishery unless the applicable number of Class A Units was assigned to it. The requisite notices issued on 21 February 1986. They were numbered 158 and 159 and prohibited the use of any boats in the fishery to which the applicable Class A Units were not assigned and which did not have either a Class B or Class C Unit attached. A system for registration of units so assigned was also set up by the Plan. Class B and Class C Units were not measures of the fishing capacity of individual boats, but the assignment of a Class B Unit to a boat was a necessary condition of its right to operate in sub-area 1. Assignment of either a Class B or Class C Unit to a boat was a necessary condition of its right to operate in sub-area 2. The Plan imposed limits on the total number of Class A and Class B Units which might be assigned to boats as a way of controlling the capacity and number of boats operating in the fishery. The principal provisions of the Plan underlying that scheme were as follows:

"8.1 On the day on which this plan comes into force,

the number of units that may be registered shall not

exceed-

(a) 122,000 class A units;

(b) 275 class B units.

8.2 The total number of class A units registered may

exceed the number specified in sub-paragraph 8.1(a) by

the total of the applicable number of class A units in

respect of boats to which class C units are assigned.

9. It shall be a requirement made pursuant to a

notice under sub-section 8(1) of the Act that the use

of a boat in the fishery is prohibited unless the

applicable number of class A units is assigned to that

boat -

(a) in relation to sub-area 1 - with immediate effect;

(b) in relation to sub-area 2 - with effect

from 1 March 1987.

.

.

.

13. It shall be a requirement made pursuant to a

notice under sub-section 8(1) of the Act that the use

of a boat in the fishery in sub-area 1 is prohibited

unless a class B unit is assigned to that boat.

.

.

.

17. It shall be a requirement made pursuant to a

notice under sub-section 8(1) of the Act that the use

of a boat in the fishery in sub-area 2 after 1 March

1987 is prohibited unless-

(a) a class B unit is assigned to the boat -

with effect from 1 March 1986;

(b) the boat licence in respect of the boat is

endorsed to exempt the holder or a person

acting on behalf of the holder from the

prohibition in the notice - until 28

February 1987; or

(c) a class C unit is assigned to that boat -

with effect from 1 March 1987."

A register of units of fishing capacity known as the Northern Prawn Fishery Central Boat Unit Register was established by cl.23.1. Provision was made in Pt.8 of the Plan (paras.28 to 30) for a Voluntary Adjustment Scheme under which the Minister could from time to time invite tenders for the surrender of units. A unitholder could also make an offer at any time to surrender units. The units were able to be acquired through a special fund financed by the levy paid by fishermen in respect of the allocation of units of fishing capacity to their boats. When units were surrendered their registration would be cancelled. Since 1986, 49,004 Class A Units have been surrendered.

21. A number of amendments to the Plan which followed its determination in February 1986 were placed before the Court but it was common ground that no significance attached to them for present purposes. They were each designated Northern Prawn Fishery Management Plan (Amendment) and numbered respectively as Plans of Management Nos. 4, 6, 7, 8, 10, 12, 13 and 24. Plan No. 6 which came into effect on 24 April 1986 altered the definition of the variables "B" and "D" in para.1.1 of Schedule 1 to "breadth amidships" and "moulded depth amidships". Plan of Management No.12, which came into effect on 27 January 1987, introduced as an additional objective in para.7 the reduction by 28 February 1990 of the total number of Class A Units to 70,000 and the reduction of the total numbers of Class B and Class C Units registered under the Plan by 40%.

22. The Plan of Management Number 3 and the various amending Plans were revoked on 30 May 1990 by the Northern Prawn Fishery Management Plan 1989 designated as Plan of Management Number NPF1. This plan was notified in the Commonwealth Gazette on 30 May 1990. Its structure is similar to that of the 1986 Plan but there are differences of expression and it assumes the continuance of the scheme established under its predecessor. By para.5 it is expressed to apply to "all activities by way of fishing for prawns in the area of the fishery". Paragraph 6 defines "the fishery":

"6. The fishery to which this Plan applies comprises-

(a) the stock of prawns in the area of the fishery; and

(b) activities by way of fishing undertaken in the area of

the fishery by any method with the intention of taking

prawns."

The "area of the fishery" is defined in para.4.1 as the area of proclaimed waters comprising sub-area 1 and sub-area 2. Those sub-areas are the areas of proclaimed waters described in paras.1.1 and 1.2 respectively of Schedule 2. The objectives of the Plan and means for attaining them are set out in para.7:

"7.1 For the purposes of sub-section 7B(2) of the Act,

the objectives of this Plan are

(a) to conserve the stocks of prawns in the are of the

fishery;

(b) to reduce the fishing pressure on the stocks of prawns in

the area of the fishery; and

(c) to promote the economic efficiency of the fishery.

7.2 The measures for attaining the objectives specified in

para.7.1 shall include

(a) the determination of the fishing capacity of the fishery;

(b) the determination of the number of units of fishing

capacity for the fishery available to a unit holder for

allocation and assignment, which shall be renewable and

transferable;

(c) the facilitation of the withdrawal of units and boats

from the fishery.

7.3 Without limiting the generality of paragraphs 7.1 and 7.2

the objectives of this Plan shall include-

(a) the reduction, by 31 December 1993, of the total number

of class A units recorded in the Register, including

surplus units and suspense units, to not more than

70,000;

(b) the reduction, by 31 December 1993, of the number of

class B units and class C units recorded in the Register

to not more than 165."

The units of fishing capacity are defined in para.4.1:

"""Class A unit" means one of a number of units

determined in accordance with para.3.1 of Schedule 1

in respect of an original boat or as a suspense unit;

"Class B unit" means a unit designated with a serial

number and recorded in the Register as a class B unit

in the name of a unitholder.

"Class C unit" means a unit designated with a serial

number and recorded in the Register as a class C unit

in the name of a unitholder."

There are also definitions of "engine power units" and "hull units" as the number of units determined in relation to a boat under para.2.3 and 1.1 of Schedule 1 respectively.

23. Schedule 1 applies to any boat of given dimensions the same formula as was provided in the previous plan for determining its fishing capacity by reference to a number of class A units which would have to be assigned to it before it could operate in the area of the fishery. The language of the definition is varied to reflect the changed terminology of the Plan as follows:

"3.1 The applicable number of class A units determined

in relation to a boat shall at any time be the sum of -

(a) the number of hull units in relation to

that boat, determined in accordance with

paragraph 1.1; and

(b) the number of engine power units in

relation to that boat determined in

accordance with para.2.3.

3.2 Where the applicable number of class A units

determined in relation to a boat, under paragraph 3.1,

is less than 100, the applicable number of class A

units in relation to that boat shall be deemed to be

100."

The number of hull units determined for a boat for the purposes of para.3.1 is calculated by the formula set out in para.1.1 which provides:

"1.1 The manager shall determine a number of hull

units in respect of a boat equal to the nearest hull

number calculated in accordance with the formula-

L x B x D x 0.6

2.83

By para.1.2 "L" represents the length overall of the boat, "B" its maximum breadth amidships and "D" its moulded deck amidships.

24. The number of units of engine power in relation to a boat is defined by para.2.1:

"2.1 The number of engine power units in respect of a

boat shall be equal to the maximum continuous brake

power at ambient temperature conditions of 27 C

expressed in kilowatts rounded to the nearest whole

number specified by the manufacturer in relation to

the type of engine or engines installed in a boat to

provide the propulsive power."

As appears from para.3.1 the applicable number of Class A Units determined in relation to a boat is the sum of the number of hull units and engine power units in relation to that boat. As may be seen from the stated objectives of NPF1 and the definition of the unit classes in para.4.1, it assumes the prior existence of Class A, B and C Units.

25. By para.9 it is to be a requirement of a notice or notices published under sub-s.8(1) of the Act that the use of a boat in the fishery is prohibited unless the applicable number of Class A Units is assigned to that boat together with:

"(a) in relation to sub-area 1, a Class B unit; and

(b) in relation to sub-area 2, a Class B unit or a Class C

unit."

The function of Class B Units and Class C Units under NPF1 is therefore the same as their function in the previous plan as amended from time to time. The objective, stated in para.7.1(b), of reducing the fishing pressure on stocks of prawns in the area of the fishery is reflected in para.8.1:

"8.1 The maximum number of each class of units that

may be recorded in the Register shall not exceed -

(a) 97,000 Class A Units;

(b) 217 Class B Units; and

(c) 3 Class C Units."

A voluntary adjustment scheme under which Units can be surrendered is provided for in the Plan as it was in its predecessors.

26. A number of amendments have been made to NPF1. These were each designated as a Plan of Management and numbered NPF2 to NPF9 inclusive. NPF2, which came into effect on 30 May 1990, amended the objectives of NPF1 to include the reduction by 1 April 1993 of the total number of Class A Units to 50,000. The number permitted under para.8.1 was reduced to 94,400. Many of the successive amendments which spanned the period up to the end of 1991 related to the restructuring and reduction of unit allocations by the Voluntary Adjustment Scheme.

The Fisheries Notices - Imposition of Gear Restrictions

27. Restrictions on the size and number of nets that could be used in the fishery were introduced in February 1988 following consultations between the Minister, the Australian Fisheries Service and representatives of industry in the area. The restrictions arose out of a proposal by the Northern Prawn Fishery Management Committee (NORMAC) which acts as an advisory body to the Minister on all fisheries management matters relating to the Northern Prawn Fishery. The committee comprises a representative of one of either Queensland, Western Australia or the Northern Territory in rotation, and representatives of the Australian Fisheries Service, the Commonwealth Scientific Industrial Research Organisation and each of four industry organisations which cover Northern Prawn Fishery fishermen. The NORMAC proposal was intended to reduce the "fishing effort" on tiger prawns in the Northern Prawn Fishery by 30%.

28. On 24 February 1988 there was published in the Commonwealth Gazette a notice issued under s.8 of the Act:

"Fisheries Notice No.203

MAXIMUM HEADROPE LENGTHS IN NORTHERN PRAWN FISHERY

I, JOHN CHARLES KERIN, the Minister of State for

Primary Industries and Energy, hereby

(a) provide that in this notice:

'area of the managed fishery' has the same

meaning as in the NPF Plan;

'Class A units' has the same meaning as in the NPF Plan;

'headrope length' in relation to an otter

trawl net, means the distance between the

outermost points at which the meshes of

the trawl are attached to the headrope;

'prawns' has the same meaning as in the

NPF Plan;

'the Act' means the Fisheries Act 1952;

and

'the NPF Plan' means the determination

made under sub-section 7B(1) of the Act

and known as Plan of Management No. 3,

Northern Prawn Fishery Management Plan as

amended and in force from time to time;

(b) pursuant to paragraph 8(1)(c) of the Act,

prohibit the taking of prawns with a boat

of a kind described in an item in column 1

of the Schedule and pursuant to paragraph

8(2) of the Act, exempt from this

prohibition the taking of prawns with the

use of an otter trawl net the headrope

length of which does not exceed the length

specified in column 2 of the Schedule

adjacent to that item; and

(c) pursuant to paragraph 8(4B)(a) of the Act,

specify the area of the managed fishery

excluding the area specified in Schedule 1

of Fisheries Notice No. 173 (published in

Gazette No. 5614 on 28 November 1986) as

in force from time to time, as the area in

respect of which the prohibition contained

in paragraph (b) of this notice is to have

effect.

SCHEDULE

Column 1 Column 2

Permissible

headrope

Kind of Boat length

1. A boat to which 375 or fewer 16.5 metres

Class A units are assigned and

which is rigged to operate two

otter trawl nets.

2. A boat to which 375 or fewer 33 metres

Class A units are assigned and

which is rigged to operate one

otter trawl net.

3. A boat to which more than 375 25.65 metres

Class A units are assigned to and

which is rigged to operate two

otter trawl nets.

4. A boat to which more than 375 51.3 metres

Class A units are assigned and

which is rigged to operate one

otter trawl net.

Dated this fifteenth day of February 1988

JOHN KERIN

Minister of State

for Primary Industries and Energy"

The notice was revoked by fisheries notice NPF9 published in the Commonwealth Gazette on 27 March 1991 following the substitution of Plan of Management Number 3 as amended by NPF1. The relevant parts of the Notice provided:

"1. This notice may be cited as Fisheries Notice No.

NPF 9.

.

.

.

INTERPRETATION

4.1 In this notice, unless the contrary

intention appears, words have the same

meanings as in the Fisheries Act 1952 and:

.

.

.

'headrope length", in relation to an otter trawl net,

means the distance between the outermost

points at which the meshes of the trawl

are attached to the headrope, measured

when the rope is stretched taut and the

net is wet;

.

.

.

PROHIBITION ON EQUIPMENT FOR TAKING PRAWNS

5. Pursuant to paragraph 8(1)(c) of the Act,

the taking of prawns is prohibited in the

area described in paragraph 10 of this

notice with the use of:

(i) a purse-seine net, a ring net, a pursed ring

net, a lampara net, a pursed lampara net or any

other net that is so constructed as to be

capable of being used, in the course of taking

fish, to surround the fish in a like manner to

the manner in which any of those nets are used

to surround fish;

(ii) an otter try-net or beam trawl net that exceeds

3.6 metres measured between the outermost

points at which the meshes of the net are

attached to the headrope or beam; or

(iii) an otter trawl:

(A) that has fly ropes fitted to it:

if any fly rope is attached to the headrope of

a trawl at a point between the outermost

attachments of the meshes of the trawl to that

headrope;

(B) that is joined at any point to other equipment

for taking fish that is, when the equipment is

being used for fishing, in the water.

6. Pursuant to paragraph 8(1)(f) of the Act,

the use at any one time from a boat, in

the area described in paragraph 10 of this

notice of a quantity of equipment for

taking prawns that exceeds:

(i) two single otter trawls and one only of either

otter try-net or beam trawl; or

(ii) one twin-rig or double otter trawl and one only

of either otter try-net or beam trawl,

is prohibited.

.

.

.

EXEMPTION FROM PROHIBITION

8. Pursuant to paragraph 8(2)(d) of the Act,

exempt from the prohibitions in paragraphs

5 and 6 on the taking of prawns with the

use of a boat using an otter trawl net the

headrope length of which does not exceed

the length specified in column 2 of the

Schedule 1 adjacent to the kind of boat in

column 1.

.

.

.

10. Pursuant to paragraph 8(4B)(a), specify

that paragraphs 5 and 6 of this notice

apply to the areas of the managed fishery

specified in Schedule 2 of the NPF Plan."

The exempted headrope lengths and net numbers set out in Schedule 1 of the Fisheries Notice NPF9 were the same as those specified in Fisheries Notice FN203.

29. Fisheries Notice NPF16 was published in the Commonwealth Gazette on 27 March 1992. It revoked Fisheries Notice NPF9 and introduced a new definition of "headrope length" as follows:

"'headrope length' means the distance along the

headrope between the outermost points at which the

measures of the net are attached, measured when the

rope is stretched taut and the rope and net are wet;"

"'otter trawl' means a single trawl net that is held open

horizontally by otter boards or hydrodynamic kites."

The relevant prohibition was set out in wider terms:

"5. Pursuant to paragraph 8(1)(c) of the Act, the taking of

prawns is prohibited in the areas specified in schedules

1 and 2 by equipment of the following kinds-

(i) an otter trawl that has one or more fly ropes

attached to the headrope between the outermost

points at which the meshes of the net are

attached; or

(ii) any equipment, other than an otter trawl or a

beam trawl or a try-net.

6. Pursuant to paragraph 8(1)(f) of the Act, a person is

prohibited in the areas specified in schedules 1 and 2

from using, or having in that persons possession or in

that persons charge in a boat, a quantity of equipment in

excess of -

(i) two single otter trawls or one twin-rig or one

double otter trawl; and

(ii) either one try-net that has a headrope length not

greater than 3.6 metres.

.

.

.

PROHIBITION ON FISHING EQUIPMENT (ALL AREAS EXCEPT FOG BAY)

8. Pursuant to paragraph 8(1)(f) of the Act, a person is

prohibited in the areas specified in schedules 1 and 2,

but not in the area specified in schedule 3, from using

or having in that persons possession or in that persons

charge in a boat, a quantity of equipment where-

(i) in the case of a boat to which more than 375

Class A units are assigned - the sum of the

headrope lengths of the equipment, excluding a

try-net or beam trawl, exceeds 51.3 metres; or

(ii) in the case of a boat to which 375 Class A units

or less are assigned - the sum of the headrope

lengths of the equipment, excluding a try-net or

beam trawl, exceeds 33 metres."

There was no separate exemption in that notice. The previously stated exemptions were reflected in amended form in para.8.

The Fisheries Management Act 1991

30. The Fisheries Act 1952 was repealed save as to Pt.IVA by s.3 of the Fisheries Legislation (Consequential Provisions) Act 1991 which came into effect on 10 May 1992, six months after the royal assent to the Act which was given on 10 November 1991. Also assented to on 10 November 1991 were the Fisheries Management Act 1991 and the Fisheries Administration Act 1991. These together provided a new regulatory framework for Australia's fisheries and established the Australian Fisheries Management Authority and the Fishery Industry Policy Council.

31. The Fisheries Legislation (Consequential Provisions) Act 1991 provides in s.7:

"7(1) Despite the repeal of the Fisheries Act 1952, other than

Part IVA, by this Act, that Act and instruments made or

determined under that Act (including regulations,

Proclamations, orders, plans of management or notices) as in

force immediately before that repeal continue in force after

that repeal to the extent necessary for the continuing

operation of that Part.

(2) Nothing in subsection (1) prevents the repeal,

rescission, revocation, amendment or variation, under the

Fisheries Act 1952 in its continued operation, of an instrument

mentioned in that subsection or the making or determination of

such an instrument under that Act in its continued operation."

The saving provision has to be read in the light of s.12H of the Fisheries Act 1952 which provides for the Commonwealth to make arrangements with a State represented on a joint authority to the effect that the joint authority is to have the management of a particular fishery in waters adjacent to that State. A reference to the State here includes a reference to the Northern Territory (s.12B).

32. By s.125, arrangements so made are to be made by instrument in writing approved by the Governor-General and the Governor of the State concerned. The Northern Prawn Fishery is the subject of such arrangements between the Commonwealth, the Northern Territory and the States of Western Australia and Queensland which were notified in the Commonwealth Gazette of 14 April 1988 at pp 2, 7 and 8. It was not disputed that by reason of the saving provisions of s.7 of the Fisheries Legislation (Consequential Provisions) Act 1991, the Northern Prawn Fisheries Management Plan continues in force notwithstanding the repeal of the Fisheries Act 1952. The question of precisely how the subsisting Plan of Management affects the exercise of statutory functions and powers under the new legislation was not explored at the hearing.

33. The Fisheries Licences Levy Act 1984 was amended by the Fisheries Levy Amendment Act 1985 and is now known as the Fisheries Levy Act 1984. By s.5 of the Act levy is imposed, inter alia, upon:

"(bc) the allocation of units of fishing capacity, being units

of fishing capacity prescribed for the purposes of this

paragraph;

(bd) the renewal of the allocation of units of fishing

capacity, being units of fishing capacity prescribed for

the purposes of this paragraph;"

"3(2) A reference in this Act to units of fishing capacity is a

reference to the units into which, under a plan of management

for a fishery, the fishing capacity permitted for the fishery

is divided."

Section 6 provides, inter alia, that the amount of levy imposed by the Act on the allocation or renewal of the allocation of a unit of fishing capacity is such amount as is specified in, or calculated in accordance with the regulations. Regulations are authorised by sub-s.6(2). These regulations specify different amounts or methods of calculating the same amount of levy in respect of different classes of units.

34. By reg.4 of the Fisheries Levy (Northern Prawn Fishery) Regulations (SR 1988 No. 58) various levies were prescribed in respect of the allocation or renewal of the allocation of Class A Units of fishing capacity. The levies were amended by the Fisheries Levy (Northern Prawn Fishery) Regulations (Amendment) (SR 1989 No. 68 Commonwealth Gazette 28 April 1989) and again by the Fisheries Levy (Northern Prawn Fishery) Regulations (Amendment), (SR No. 82 1990, Commonwealth Gazette 30 April 1990). Similarly titled amendments appear in Statutory Rule No. 365 of 1990 (Commonwealth Gazette 30/11/1990), Statutory Rule No.143 of 1991 (Commonwealth Gazette 26 June 1991) and Statutory Rule No.371 of 1991 (Commonwealth Gazette 27 November 1991).

35. By their amended statement of claim the applicants plead that the effect of the Fisheries Notices FN 203, NPF 9 and NPF 16 was:

"(a) to reduce the fishing capacity of some vessels operating

in the Fishery including the plaintiffs' vessels, by

reducing the number and size of nets which such vessels

were otherwise actually able and lawfully entitled to use

in accordance with the NPFMP when fishing in the Fishery;

(b) that in consequence thereafter:-

(i) the fishing capacity of the fishery was measured

not as determined in the NPFMP but by allowable

net capacity, determined by reference to the size

and numbers of nets which vessels permitted to

operate in the Fishery were allowed to use; and

(ii) the fishing capacity in fact permitted for the

Fishery was the aggregate of allowable net

capacity determined by reference to the sizes and

numbers of nets which each and every vessel

permitted to operate in the Fishery was allowed

to use and was less than the permitted fishing

capacity determined in the NPFMP."

On this basis it is claimed by the applicants that the notices were ultra vires.

36. The applicants rely in their submissions upon s.7B(8) of the Fisheries Act 1952 which they submit qualifies the performance of functions and the exercise of powers in relation to the fishery. sub-section 7B(8A) deals they say, with the general performance of functions and exercise of powers by the Minister and the effects which they may have on any Plan of Management whether direct or indirect. It is submitted that together they are consistent with "a legislative intention to accord paramountcy to plans of management over the general performance of functions and general exercise of powers with respect to fisheries the subject of plans of management". The successive fisheries notices imposing restrictions on the nature and size of nets permitted for boats operating in the fishery are said to have modified in a substantial way the extent and division of fishing capacity. The restrictions are not directly proportional to the numbers of Class A units allocated to such boats and do not reflect their actual fishing capacity. The effect of the restrictions is said to be that the total capacity of all nets used in the fishery is now the measure of its permitted capacity. The issue of the fisheries notices was therefore not in accord with the Northern Prawn Fisheries Management Plan.

37. The alternative plea made in the statement of claim is that if the fisheries notices were validly issued, then they are inconsistent with the Northern Prawn Fishery Management Plan in its various forms and have impliedly repealed parts of it. The effect of the implied repeal is said to be that since 24 February 1988 the fishing capacity permitted for the fishery has not been based on the unit system set up under the Plan of Management and its division between operators has not been based upon allocation and renewal of units. The applicants say they have paid a levy to the Commonwealth since May 1988 purportedly in respect of allocation and renewal of units and to avoid their cancellation so that they may obtain the necessary licences. The amounts concerned are $245,494.20 paid by the company in respect of "Latitude" and "South Passage" and $119,538.90 by all the applicants in respect of "Portland Road". The applicants say that the levies paid after the publication of FN203 are recoverable as paid under an invalid compulsion - Bell Bros. Pty Ltd v. Shire of Serpentine-Jarrahdale [1969] HCA 63; (1969) 121 CLR 137.

38. The legal relationship between the fisheries notices and the Plan depends in part upon the interaction of the Plan and the Fisheries Act 1952. The Plan is established by a ministerial determination effected by instrument in writing (s.7B(1)). By virtue of s.7C(3) the determination attracts the application of provisions of the Acts Interpretation Act 1901 relating to the tabling, disallowance, operative dates and repeal of regulations. It is also deemed to be an order made by the Minister for the purposes of s.5 of the Evidence Act 1905 (s.7C(5)). Evidence of its making can therefore be given by production of the Gazette purporting to contain it or of a copy certified by the Minister. It is deemed to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975 (s.7C(6)). A determination under s.7B is not a policy statement. In Secretary, Department of Primary Industries and Energy v. Collins [1992] FCA 61; (1992) 106 ALR 351 at 356, Heerey J. observed that a Plan of Management stands on quite a different legal footing from policy statements or guidelines. I respectfully agree with his Honour's view in this regard which accords with the opinion I expressed in Azevedo v. Secretary Department of Primary Industries and Energy [1992] FCA 84; (1992) 106 ALR 683 at 698. On the other hand a determination is not a species of regulation or by-law creating rights and duties by virtue of a general statutory authority delegating a law making power to the Minister. Whether it falls within the wider concept of delegated legislation at all may be debateable. In Pearce - Delegated Legislation in Australia and New Zealand (1977) it is suggested that delegated legislation can be defined as "instruments that lay down general rules of conduct affecting the community at large which have been made by a body expressly authorized so to act by an Act of parliament" (pp 1-2). Accepting the limitations of that definition and the uncertain boundaries of executive and legislative activity which are pointed out in the text, it may be doubtful whether a determination under s.7B of the Fisheries Act 1952 is properly described as delegated legislation. The provisions of the Act by which it is deemed to be an order for one purpose and an enactment for another, and the application of provisions of the Acts Interpretation Act 1901 specifically relating to regulations suggest that while the determination is so regarded for some purposes, that characterisation is not of general application. On the other hand, in Austral Fisheries Pty Ltd v. The Minister for Primary Industries and Energy (unrep Fed Ct 28/7/1992 O'Loughlin J. Library No. 529/1992), O'Loughlin J. favoured the classification of Plans of Management as a species of legislation and held that the power conferred on the Minister by s.7B was of a legislative character. In the Second Reading Speech for the Fisheries Legislation Amendment Act 1985 by which s.7B was introduced into the Fisheries Act 1952 it was said that management plans would "have the force of law" (H of R Deb 17.4.85 p 1289). The problem of classification perhaps points up the difficulty adverted to by Professor Pearce in separating legislative and executive action where the two areas of official conduct meet. In the end, I think the better course in most cases is probably to eschew the taxonomic debate and focus upon identification of the rights, duties, powers and privileges which arise as a result of the determination of the Plan.

39. The Minister and Secretary are subject to a statutory duty to perform their functions and exercise their powers under the Act in relation to the fishery in accordance with the Plan of Management and not otherwise. The obligation subsists while the Plan is "in force" for the fishery. The term "in force" in this context does not imply the imposition of obligations under the Plan which derive from some source other than s.7B(8). It is a condition of the imposition of the duties created by the sub-section that the Plan be "in force". In context that means that the determination which is an instrument in writing under the Act, will not have been repealed, rescinded or revoked under s.33(3) of the Acts Interpretation Act 1901. Nor, pursuant to s.48 of the Acts Interpretation Act 1901 will it have ceased to have effect or have been disallowed by either House of Parliament.

40. The duty imposed by the sub-section is ambulatory in the sense that its content depends upon the content of the Plan of Management to which it relates. The duty has been given some consideration by the Administrative Appeals Tribunal in two decisions being, Re Brown and Secretary, Department of Fisheries and Energy (1989) 18 ALD 543 and Re Wisby and Secretary to the Department of Primary Industries and Energy (unrep 13 April 1989). In Re Brown the Tribunal saw it as limited to a requirement that the Minister or Secretary perform their functions and exercise their powers in accordance with the "operative provisions of the plan". An introductory paragraph to the effect that the plan there in question did not affect the power of the Minister or Secretary under the Act was not such a provision. The Tribunal also took the view that the exercise of a power in a way that would "subvert" or "make nonsense of" a power was prohibited by s.7B(8). It does not appear however that those terms were used as anything more than descriptive of particular cases of inconsistency.

40. In Re Wisby the Tribunal, differently constituted, said at p 19-20 of its reasons for decision that the Tribunal in Re Brown had come to the conclusion that 7B(8) "prohibited the Minister and delegates exercising their powers in a way which would "make nonsense of" or "subvert" the Management Plan inconsistently with its provisions". Counsel for the respondent in the present case submitted that sub-s.7B(8) is a "general mandate" and that the words "in accordance with" simply mean that the Minister or Secretary cannot exercise their powers and functions in such a way as to "make nonsense of" or "subvert" or "render nugatory" a provision of a management plan. In my opinion, however, the requirement that functions and powers in relation to a fishery be exercised in accordance with the Plan is a requirement that they be exercised consistently with it. Terms such as "make nonsense of" or "subvert" or "render nugatory" used to describe the conduct enjoined by the statutory duty tend to suggest a higher threshold for its application than is the case. In my opinion, if the Minister or the Secretary were to purport to perform a function or exercise a power under the Act in relation to the fishery in a way that was in direct conflict with a provision of the Plan or in a way which differed from that exhaustively prescribed by the Plan for doing that thing, then the purported performance of the function or exercise of power would be ultra vires. The test is one of consistency and there is ample authority in a variety of contexts for the way in which it is to be applied. The generality of the content of the duty imposed by sub-s.7B(8) is ultimately in the hands of the Minister making the determination. The more prescriptive the plan in areas relating to the exercise of statutory powers and functions, the more confining the content of the duty imposed by sub-s.7B(8) will be. A plan drawn in more general terms will allow greater freedom of action.

41. It was also submitted for the respondents that sub-s.7B(8A) made it clear that the Plan was "not intended to be an overriding consideration but rather that the Minister should consider the potential effects of the exercise of his powers on those fisheries for which a Plan of Management was in force". The proposition was extracted from the decision of the Administrative Appeals Tribunal in Re Wisby (supra). Its precise import is not clear. What is important to note is that sub-s.7B(8) concerns the performance of functions and the exercise of powers under the Act "in relation to the fishery" by which is meant the fishery which is the subject of the relevant Plan of Management. Sub-section 7B(8A) on the other hand concerns the performance of functions and the exercise of powers "generally under this Act". It requires the Minister and the Secretary to have regard, in the performance of any functions and the exercise of any powers under the Act, to their effects upon any Plan or Plans of Management. It does not qualify the duty imposed by sub-s.7B(8).

42. Against that background of statutory construction, the question to be asked is whether the issue of each of the fisheries notices imposing gear restrictions on boats operating in the Northern Prawn Fishery was consistent with the provisions of the Plan of Management in relation to the determination of the manner in which the fishing capacity of the fishery was to be measured, the division of the permitted fishing capacity and the allocation of units of fishing capacity to boats and persons.

43. Section 7B of the Act leaves open the possibility that fishing capacity may be measured and determined in a variety of ways. It permits the use of provisions relating to the division of fishing capacity into units and their allocation and assignment to persons and boats. Fishing capacity is not defined. It is left to the Minister to decide, within the limits permitted by a reasonable range of interpretation and the purposes of the legislation, the variables by which capacity may be measured. In a sense this leaves for the Minister, within those limits, the task of defining fishing capacity. This is done by selection of the variables by which it is to be measured. The Plan presently in force selects the physical dimensions of a boat related to its underdeck volume and the continuous brake power of its engine as the relevant variables by which its capacity can be determined. A maximum total permitted fishing capacity for the fishery is fixed by reference to units defined by reference to those variables. It is then divided and allocated to boats so that the capacity of the boats thus measured which are permitted to operate in the fishery does not exceed that total permitted capacity. That some other variables could have been chosen is apparent from the Second Reading Speech for the Fishing Legislation Amendment Act 1985 where it was said:

"Management Plans will be able to deal with the

determination of the manner of measuring the fishing

capacity in a fishery, the total fishing capacity for

that fishery, the allocation of that fishing capacity

among licensed fishermen by way of units and the

regulation, recording and evidencing of transactions

involving units of fishing capacity. The capacity of

a fishery can, for example, be measured in terms of

outputs such as the allowable catch or inputs as

permitted quantities of fishing gear, such as lobster

pots, or the size and engine power of the fleet in the

particular fishery being managed." (H. of R. Deb.

17/4/85 p 1288)

44. The Northern Prawn Fisheries Management Plan has as its objectives the conservation and reduction of pressure upon the stock of prawns in the area of the fishery and the promotion of its economic efficiency. The second objective is not independent of the first for overfishing of prawn stock will have obvious consequences for the economic viability of the industry in the area covered by the Plan. Consistently with those objectives, the adoption of the system of limiting and dividing notional permitted capacity in the fishery does not prevent the limitation of catches within that capacity by a means which may be introduced from time to time by the use of fisheries notices. That view is consistent with the way in which para.7.2 of the Plan as originally determined and paras. 7.2 and 7.3 of its successor specify measures for obtaining the objectives inclusively and not exhaustively. It is also consistent with the legislative intention disclosed in the Second Reading Speech in which it was said:

"While management plans will be subject to

parliamentary scrutiny and disallowance and will have

the force of law, the Bill preserves the established

techniques of licensing of master fishermen and boats

and of regulating the operations of the fleet through

prohibitions by notice. Examples of prohibitions are

closed seasons, legal minimum sizes and fishing gear

controls. The Bill thus combines the established

practices of, when necessary, regulating individuals

in their fishing activities with the flexibility that

management plans will provide for regulating the

capacity of the fleet as a whole in any particular

fishery."

It may be accepted that the gear restrictions specified by the fisheries notices under attack in this case have imposed limitations upon the ability of the applicants to fully exploit the capacities of their boats to catch prawns. I do not accept that the system imposed by the Plan of Management constitutes an exhaustive prescription for the limitation of catches in a way which would render the use of the fisheries notices in issue inconsistent with it and therefore beyond power. In my opinion the applicants' principal argument cannot succeed.

46. It follows from the above reasons that the issue of the notices cannot on any view amount to an implied repeal of the Plan in relation to the allocation of units of fishing capacity. In the circumstances it is not necessary to consider whether a valid fisheries notice issued under s.8 of the Act, if inconsistent with the Plan could be said to work an implied repeal of part of it given that the Plan is a different kind of statutory instrument. In the event no question of payment of the levies under invalid compulsion arises. The alternative claim for repayment of those amounts must fail. For these reasons the application as a whole will be dismissed with costs.